When hearing of our plan to expand the Supreme Court for the first time, some people are surprised, or even confused. After all: a nine-member court is all that anyone can remember. Having learned about the Supreme Court in school and heard about its decisions in the context of nine members, it’s easy to imagine that nine is some sort of magical number, divined by our country’s founders.
The reality is, the Constitution does not set the number of Supreme Court justices. That job is given to Congress, which is also tasked with setting the structure and rules, not just for the Supreme Court, but for the judiciary as a whole.
Originally, Supreme Court justices “rode the circuit”, traveling to various district courts to hear appeals. The first Judiciary Act (1789) created three circuits, with two Supreme Court justices assigned to each – six members on the Supreme Court. The court’s size was tied to the number of federal circuits. In 1802, Congress affirmed a change in the number of circuits to six, with one Supreme Court justice assigned to each.
For some time afterward, this practice held. In 1807, a Seventh Circuit was added, and the Supreme Court expanded to seven justices. Two additional circuits were created in 1839, and the court expanded again accordingly, to nine members. And, in 1863, a tenth Supreme Court justice was added to accompany the new Tenth Circuit in Oregon and California.
As Alexander Hamilton explained in the Federalist Papers, the purpose for these regional courts was not merely to save people from having to travel to have cases heard. The courts had to be “competent” to deal with the “matters of national jurisdiction within [their] limits”. The cases that arose in a financial center like New York, for example, would be different from the types of cases that would eventually arise in the West, where issues of land use, water rights, and Native American law are now prevalent, which in turn are different from the cases arising in the South and other areas of the country.
This tradition of having the Supreme Court’s size tied with the changing needs of the nation was broken with the crisis of Andrew Johnson’s presidency. A Southern Democrat, Johnson had been nominated Vice President to “balance” Abraham Lincoln’s ticket, and, after ascending to the presidency following Lincoln’s assassination, was hostile to Reconstruction and the Republican Congress. In order to prevent Johnson from placing any justices on the Supreme Court, Congress passed the Judicial Circuits Act of 1866, stating that “no vacancy in the office of associate justice of the supreme court shall be filled by appointment until the number of associate justices shall be reduced to six“.
After Johnson left office, new legislation set the number of justices to nine, where it has remained ever since. Today, there are thirteen circuit courts of appeals: eleven regional circuits; a D.C. Circuit, which often reviews the decisions and rulemaking of many federal agencies based in the national capital; and the Federal Circuit, which has jurisdiction over patent and trade cases, as well as appeals from district courts in various U.S. territories. And yet, the Supreme Court has not grown to match these new needs.
This deviation from precedent has had a number of impacts on the nation. The Supreme Court does not have the diversity of knowledge of local issues and fields it once had. Not a single member, for example, has served on a court specializing in intellectual property – a vital and contentious part of our modern economy. It also does not have the advantages that come with a larger size.
With just one exception, every Circuit Court of Appeals has eleven members or more by law. This larger size allows what are known as panel decisions, where a panel of 3 or more judges hear and decide a case (keeping open the possibility of the full court hearing a case en banc, should it decide to). These panel rulings allow appeals courts to answer many more of the questions put before them. The Supreme Court, on the other hand, has no panel rulings, and although they receive thousands of petitions a year, typically they issue between just 70 and 90 decisions.
In addition to these issues of experience and workload, the smaller nine-member court is more vulnerable to concerted efforts to capture the institution by partisans and ideologues. As we have discussed, the current five member conservative majority is the result of an extremely “partisanized” approach to Court nominations. The smaller court lowers the bar needed to dominate rulings and compromises its integrity. In the present day, this vulnerability to corruption has resulted in a long list of rulings favorable to Republican power, and threatening the integrity of our democratic system.
That why we at SCOTUS Majority PAC advocate for a return to this historical tradition by expanding the Supreme Court so that it has one seat for every one of the 13 U.S. Circuit Courts of Appeals. This expansion will restore balance to the court, restore its power, and ultimately, restore its wisdom.